Financial Remedies on Divorce or Civil Partnership Dissolution
After the arrangements for their children, the main cause of anxiety and concern for our clients comes from dealing with their financial arrangements. Many clients fear that they will be unable to cope financially after separating from their spouse or civil partner – who gets the house, the pensions, the savings? – and who takes responsibility for the debts? The phrase we hear over and over is “I want to know where I stand”. We can help.
At King Street Solicitors LLP, our experienced family solicitors provide tailored advice right from our first meeting. We understand that dealing with separation and divorce is one of the most upsetting and stressful experiences you will ever have, and we pride ourselves on being friendly and approachable. Dealing with your solicitor should not add to your stress.
What follows is a brief outline of the process and is not a substitute for detailed, specific independent legal advice.
Where do we start?
The starting point for separating a couple’s finances is to have a clear picture of their assets and liabilities. This can be achieved:
- through mediation;
- through the Collaborative Law process (insert link to collaborative page here);
- through a voluntary exchange of information; or
- enforced through Court proceedings.
Download our checklist of financial documentation.
Providing full and frank financial disclosure means that we can provide you with the fullest and most accurate and reliable legal advice. It gives us a detailed picture of your financial circumstances which allow us to protect your position and obtain the best possible outcome for you.
Once we have exchanged financial information with your spouse, we will consider with you whether we need to ask for any further information or explanation of the information provided.
We’ve exchanged financial information – what happens next?
Once we have a clear and accurate picture of your finances, we will advise you about the likely outcome to negotiations or Court proceedings, and start to negotiate with your spouse or civil partner. Negotiations can take place directly between solicitors, in correspondence or through face-to-face meetings between the parties and their solicitors.
If you and your spouse or civil partner can reach a financial agreement, it is often advisable to draw up a Consent Order. This means that the agreement can be enforced in the future. It is also possible – and important – to think about having an order which includes a “clean break”, preventing either party from making applications in the future.
An application can be made to the Court at any time after the Decree Nisi in the divorce or dissolution process for a Consent Order to be considered and approved by a Judge. A small fee is payable to make this application. If both parties are legally represented, then it would be unusual for the parties to have to go to Court. When one or both parties have had no legal representation, there is usually a short Court hearing for the Judge to be certain that both parties understand the legal implications of entering into the agreement.
Will I have to go to Court?
For the majority of our clients, dealing with their divorce is the first time they have had any contact with the Court system.
Our solicitors pride themselves on negotiating out-of-court arrangements which can bring a speedy and amicable resolution to a marriage or civil partnership. However, we also know that there are circumstances where the other party is dragging their feet, or being hostile or failing to provide full and frank information and an application to Court is necessary to resolve financial matters.
An application to Court should not be seen as a hostile or aggressive move but rather as a way of asking the Court to set a timetable for the resolution of your case. Once the Court has set a timetable if it is not adhered to, the party who has failed to keep to this timetable can be ordered to pay some or all of the other party’s costs. This usually provides a serious incentive to progress matters.
If negotiations are not moving forward it is our experience that it can ultimately be faster and cheaper to ask the Court to deal with financial matters.
Download our information about the Court process
What will the Court take into account?
The first consideration for the Court is the welfare of any children of the family up to age 18. The court then has to consider, in particular:
- the income, earning capacity, property and other financial resources which each of you has or is likely to have in the foreseeable future;
- the financial needs, obligations and responsibilities each of you has or is likely to have
- the standard of living enjoyed by the family before the marriage broke down
- the age of each of you and the duration of the marriage
- any physical or mental disability either of you has
- the contributions which each of you has made or is likely to make to the welfare of the family (including looking after the home or caring for the family)
- the conduct of each of you (if this is so serious it would be wrong for the Court to disregard it)
- the value to each of you of any benefit you lose the chance of acquiring by reason of the divorce ( which is important in relation to pensions).
What can a Court do?
- Property – the Court can make Orders for Sale for a property or properties to be sold, or Property Adjustment Orders for a property or properties to be transferred to one party or another.
- It is also possible for a non-occupying spouse to retain a financial interest in a property to a future date, which can be realised in specific circumstances (for example, the occupying spouse’s death, remarriage or cohabitation, or a sale of the house, or the youngest child reaching a specific age or stage of their education).
- Cash – the Court can divide cash assets between the parties in any way it sees fit by way of Lump Sum Orders. Such Orders can include payments by instalments.
- Pensions – the Court can make Orders transferring a part or whole of a pension from one spouse to another under a Pension Sharing Order. There are other less common Orders which the Court can make in respect of spouses or civil partners pension funds.
- Maintenance – the Court can make Periodical Payment Orders requiring one spouse or civil partner to pay maintenance to the other on a regular basis from their income. The frequency and amount of the payment can be ordered by the Court. The duration of such an Order is usually described as either a ‘Term Order’ (for a specified period, e.g. 3 years) or a ‘Joint Lives Order’ (designed to be a long-term Order, theoretically until one of the party’s die).
What can’t a Court do?
The Court can not alter any legal responsibility which parties have in respect of liabilities such as bank loans, overdrafts and credit cards. So for example, the Court cannot transfer a personal loan from the name of one party to another. This means that in dividing up the assets, the Court will also bear in mind which of the parties will end up with responsibility for debts.
Our family team offer free initial appointments and fixed fees for dealing with financial matters.
Contact our specialist family solicitors in Wakefield on 01924 332395 or Pontefract on 01977 705762.